ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170016997


APPLICANT REQUESTS:   an upgrade of his under other than honorable condition discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Self-authored Statement
*  DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. The applicant states while being stationed at Ft Gordon, Georgia he ran into a lot of problems that he never had prior to being assigned there.  “A Sergeant confronted him with a negative attitude and unfavorable opinions, which he felt were racial.  He tried to utilize his chain of command, but felt they provided no assistance.  He felt he had few options with no support. He had no real friends and he gave up on what he had started. He did not complete signal school and due to the stress, he lost his temper and caused himself deeper problems.  He takes full responsibility for what he did and is seeking forgiveness.

3.  A review of the applicant’s service record shows:  

     a.  He enlisted in the Regular Army on 9 February 1972. 

     b.  The complete facts and circumstances surrounding his discharge are not available to the Board for review with this case; however, on 27 October 1972 he was convicted by special court-martial of:

* two specifications of theft
* five specifications of unlawfully entering several Operations van with the intent to commit a criminal offense
* one specification of absenting himself from his unit from 1 August 1972 through 16 August 1972

c.  The court sentenced him to forfeit seventy five dollars per month for three months, to be confined at hard labor for three months and be transferred to the Correctional Training Facility.  

d.  On 27 October 1972, the sentence was approved and duly executed.

   e.  Special Orders Number 30, dated 9 February 1973 directed an undesirable discharge under the provisions of Chapter 13, AR 635-200 for unfitness.
   
   f.  He was discharged on 13 February 1973.  His DD Form 214 shows he completed 8 months and 14 days of active service with lost times from 24 June 1972 to 11 July 1972, 1 August 1972 to 21 August 1972, and 10 Oct 1972 to 21 December 1972.  It also shows he was awarded the National Defense Medal.

4.  By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstance in his case.

5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.  


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to his misconduct which was serious and criminal in nature, the Board agreed that the applicant's discharge characterization was warranted.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 635-200 (Personnel Separation Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel

  a.  Paragraph 1-9d (Honorable Discharge) states a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.  
  
  b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.
  
  c.  Chapter 13 of that regulation provides procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.
  
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170016997


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